Friday, July 31, 2009

Friday TED Talk: Alain de Botton on Success and Failure

The 2009 TED Global talks are starting to come on line. One of the first is this scintillating verbal essay by British (originally Swiss) social philosopher Alain de Botton, who advocates a kinder view of the difference between success and failure, since there are so many random factors at work in peoples' lives. (I have to say again how much I appreciate the fine British art of extemporizing on the spot, using only minimal notes, and without a script or teleprompter. A small foretaste of what is in store: "The next time you see someone driving a Ferrari, don't think: 'This is someone who's greedy' --- think: 'This is somebody who is incredibly vulnerable, and in need of love.'" Though a postmodern intellectual, he can still see the wisdom in Christian sources such as St. Augustine.)

Sit back and relish this delightful talk:

There is a TED page on Alain de Botton here, with links to all six of his books. You may watch his talk in high-res video here, and download other versions of this talk from this page.

Thursday, July 30, 2009

Fresno: A Taste of Things to Come

There are far bigger problems in Fresno County, California, than the ongoing lawsuit brought by Bishop Lamb and ECUSA against Bishop Schofield. Today, the Toronto Globe and Mail came out with a well-written and detailed story about an ongoing clash between farmers in the San Joaquin Valley whose irrigation water supply has been cut to negligible amounts due to environmental agitation to save the delta smelt. Delta smelt are steel-blue, six-inch long fish who serve primarily as food for invasive larger species of fish such as the striped bass and largemouth bass. They cannot survive encounters with the large pumps used to send water from the delta south to the San Joaquin Valley for irrigation. Their numbers dropped in recent years to the point where they became listed as an Endangered Species and hence entitled to federal protection. The reduction in the water supplies for the San Joaquin Valley, following on two years of drought, have forced farmers first to watch crops wither in the field, and then to let their fields lie fallow.

The economic consequences are now severe. The story in the Globe and Mail relates the following facts:
The lineup at the makeshift food bank by the old rodeo grounds is almost a kilometre long.

Tent cities for the homeless have sprung up on H Street in Fresno.

The last bank, Westamerica, in the nearby town of Mendota has a new sign in the window saying it will close for good.

In California, authorities have begun to issue IOUs instead of cash.

Unemployment stands at 11.6 per cent and 180 cities are set to sue the state over a budget that proposes to close a $26.3-billion shortfall by taking $4.7-billion from their coffers.

In all of this, Fresno County . . . has the unenviable distinction of being the hardest-hit county in the state.

Its jobless rate reaches 40 per cent in some towns. America's housing crisis was its most pronounced here, with prices almost triple a home's value. Nearly half of all sales these days involve foreclosure.

. . . [The] Central Valley, a semi-arid, 650-kilometre stretch of land is the heart of California's $37-billion agricultural industry. Half of the country's vegetables are grown here. It also ranks as the world's largest agricultural area.

. . .

Today, Interstate 5, the highway that slices through the San Joaquin Valley, is flanked by parched fields. Signs, in English and Spanish, proclaim: “Congress-created dustbowl” and “No water, No future” and “Like foreign oil? You'll love foreign food.”

The bitter irony that farm families in the region known as America's salad bowl are flocking to food giveaways at churches and community centres is lost on no one.

Without water, farmers have left an estimated 200,000 hectares of once-productive farmland fallow. Thousands of farm workers, mainly Spanish-speaking migrants, have been laid off.

. . . [L]ost farm revenue in the San Joaquin Valley could top $2-billion this year and will suck as many as 80,000 jobs out of its already-battered economy.
And what is the importance of the delta smelt? You can search for a long time on the Web, and you will find no one who wants to stick his or her neck out. To be sure, there is lots of talk about "integrated ecosystems", the smelt "as a warning indicator for other species", and similar concepts, but the bottom line is that it has been declared an Endangered Species. And under the mandated protections of the Federal and State Acts, there are no options but to stop the pumps, even though there are absolutely no guarantees that the smelt will survive other ecosystem pressures --- like those invasive predators they attract. The people who depend on the distribution of irrigation water to make their living feel they are being unfairly singled out to take the bulk of the penalty for long-term and wide-scale ecosystem mismanagement.

This statement is from the Association of California Water Agencies, whose 450 members are responsible for about 90% of the water delivered in California:

"This decision focuses on a single species when, instead, we need to focus on the entire ecosystem. It regulates only water project operations when the science clearly indicates that other stressors -- including exotic species, land uses and pollution -- play a major role in the demise of the aquatic ecosystem. Further, this decision will do nothing to solve the underlying structural causes of the conflict between the needs of the aquatic environment and the state's water system.

"The benefits to Delta smelt are highly speculative because of the very limited approach being taken. What is not speculative, however, is the very real impact on our economy these actions will have. This will certainly add to on-farm jobs losses, push additional businesses into failure, and further burden our urban and agricultural economy at a time when the state and the nation are in an economic tailspin.

"What's happening here is a single-species, single-stressor approach using half-century-old infrastructure that pits species protection against the California economy -- all under the control of a federal judge. It's an approach inherited from the past, and frankly we need new leadership.

"It should be apparent to everyone that we are on the wrong train. This single-species, single-stressor train left the station decades ago and has yet to produce satisfactory results for any species or our long-term water supply reliability. There is no reason to think the next round of narrowly focused actions will be any more beneficial for fish than the last one -- and we know it's more bad news for water supplies and the state and national economy. This week it is Delta smelt, last week it was longfin smelt, and in a few months it will be the salmon. The requirements of these decisions will almost certainly be in conflict with each other, and everything will be in conflict with a healthy economy.

"The only way forward is to get off this train and board a new one with the right destination -- a comprehensive approach that focuses on the ecosystem and a portfolio of solutions, including actions to address all stressors and structural improvements in the water supply system, including conveyance and storage, to reduce conflict between the aquatic environment and water supply reliability. We need to move, on an urgency basis, to adopt such a comprehensive approach that can work for the environment and our economy.

"This must be a priority for the new administration in Washington, D.C. Every day we stay on the wrong train is another day of further ecosystem decline and lost water supplies."
Now go and re-read the Globe and Mail story with that background in mind. California's politicians are too mired in budgetary woes to address the problem --- budgetary woes which are being exacerbated by the level of farm unemployment and business failures caused by their collective inaction. And Congress is too busy trying to impose crazy cap-and-trade schemes and mandated healthcare madness to pay attention to a few more farmers being wiped out. (Besides, the farmers are probably all Republicans.)

Truly these are sad times. Due to the downward spiral effect, as more failures lead to more layoffs, defaults and more failures, they can only get much, much worse before they will begin to get better. The stimulus plan has been great thus far only for Goldman Sachs, whose employees are set to receive average bonuses of $700,000 apiece this year, and for banks and other firms on Wall Street. Meanwhile, your government is printing money to pay interest to its foreign creditors, with no thought for the future inflation that will be inevitable.

And in Fresno, Todd Allen and his family are sitting on 600 acres of land made useless by a probably futile but showy gesture. The gesture was demanded by environmentalists to save a small fish so that bigger, invasive species can have something to eat. This will ensure that as they continue their ecological depredations, the striped and largemouth bass will be well supported. And once they wreak their environmental havoc on the salmon habitat, watch for more drastic environmental measures to protect them.

One spiral leads downward, to economic collapse, poverty and joblessness.

The other spiral leads outward, to spreading ecological collapse, dwindling food supplies, and extinction.

And the politicians fiddle.

When all the pieces start to fit together like this, foresight and hindsight begin to merge. There seems to be no escape from the picture that is forming before our eyes. At least, not until our leadership starts to act responsibly, and to stop making the bad worse.

Hope and change? We got the change which so many seemed to want just nine short months ago. But where's the hope?

[UPDATE 08/01/2009: Now comes word of another population of delta smelt which is unaffected by the pumping, because they thrive in a different portion of the delta. But does that information soften the harshness of the environmentalists' stance? Not on your life.]

[UPDATE 07/31/2009: Not that I need to clinch my point, but the video below shows that the fiddling is going on at all levels. Note especially the level of understanding of farm economics that is on display (and this is just one video in a series!):

Wednesday, July 29, 2009

Whither the Anglican Communion? (Redux)

One year ago today, in the midst of the 2008 Lambeth Conference, I put up a post entitled "Whither the Anglican Communion?" Following General Convention 2009, and the reflections in response to it by the Archbishop of Canterbury, it is time to bring back that post for a second look at the success of its prognostications to date. (Besides, some of the links are outdated, and need refreshing.) Below is the original post, in blue, with my new commentary interspersed.

Whither the Anglican Communion? (07/29/2008)

There is an important
new post by Dr. Andrew Lilico, whose profile you may peruse here, on what the future split of the Anglican Communion will look like, and on how the coming split is inexorable. In contrast to the rumors and speculations you can read at the mainstream media sites, this writer gives informed specifics, broken down by each interest group, and also analyzed against the peculiar background of the Church of England's Erastianism.

After you have absorbed Dr. Lilico's post, go and read Cranmer's additional thoughts on how there will always be a Church of England---at least, so long as there is a reigning British monarch.

Then, for dessert, read this piece at Fr. Al Kimel's blog: Is The Episcopal Church Truly a Catholic Church?

Comment: (Note that Father Kimel has rearranged his Weblog. To read the piece just linked, scroll all the way down to the bottom of the page to the last post, numbered "XVIII" and dated July 29, 2008.)

Each of these articles is pertinent to my title, especially in light of the second Lambeth address given last night by the Archbishop of Canterbury.

Dr. Lilico sees most clearly what I think all the fuss and bother at Lambeth about sexuality--- now we'll discuss it, now we won't---is obscuring: the Church of England is coming apart right under Archbishop Rowan's nose. The
refusal of General Synod to make continued provision for its Anglo-Catholic wing means that they will not be able to stay in the same Church with women bishops: they regard the latter as an invalidation of the historical apostolic succession. The evangelicals, meanwhile, will not tolerate the election of practicing homosexuals to the episcopate in clear violation of Scripture, as I explain in this post; with the Anglo-Catholics gone, there will be no means of halting the inexorable trend that begins, as TEC has seen, with the ordination of women, and the Church of England will have at least one openly gay bishop before Lambeth convenes again. Dr. Lilico foresees a two-thirds reduction in the number of CoE priests when these two groups take their leave. At the same time, however, he does not predict that the separate groups will fall out of Communion with each other, but will remain as "sister churches"---because of the incredible complexities of property ownership going back to medieval times. (He also believes that the departing evangelicals and the Anglo-Catholics will maintain their present alliance. I am more skeptical that they will both make the break at the same time, and so think that they will end up separate because they will break off that way.)

Comment: All still true. The failure of Synod to make adequate provision for its Anglo-Catholics has resulted in dire warnings and foreboding statements from that group's leaders. While the ordination of women to the episcopate in the Church of England is not yet a fait accompli, it is still very much on track.

As for The Episcopal Church, does anyone doubt that it will be a return to business as usual once the
September meeting of the House of Bishops convenes? Will our bishops' experiences at Lambeth cause them to change course, to drop the phony deposition threat against Bishop Duncan, and to work with him, San Joaquin and Virginia on a way to end all the litigation? I have seen nothing from the remarks of our Presiding Bishop thus far to indicate that. Thus if the bishops "depose" Bishop Duncan in September, the Diocese of Pittsburgh will follow the Diocese of San Joaquin out of The Episcopal Church, and the Dioceses of Fort Worth and Quincy will leave shortly after that. There will then be enough of a critical mass to organize a new North American province for those who have left TEC.

Comment: All has turned out as predicted.

That new province will receive immediate recognition from the GAFCON Primates' Council, but to be accepted as a province of the Anglican Communion will require action by the Anglican Consultative Council and all the Primates of the Communion, and the process would have to begin with the Presiding Bishop of The Episcopal Church, as explained
in this article:
Since the geographic United States is already a province, it would have to be split in some manner for another province to be formed. This has never before happened for doctrinal reasons.

The ACC requires the presiding officer or primate of the original province to request it to begin the process leading to division. That could be the first formidable hurdle for a theoretical new Anglican province in the United States. "I don't envision the presiding bishop of the Episcopal Church requesting such a division," Sessum said.
Indeed---nor do I, so long as it is Katharine Jefferts Schori whom we are talking about. However, once the total bill for her disastrous litigation strategy comes due, I predict that she will not serve out her full term in that position.

Comment: The full bill for the Presiding Bishop's disastrous litigation strategy has yet to be presented. General Convention 2009 swept it under the rug, and allocated $4 million to litigation and "discipline" proceedings over the next triennium --- an amount that will undoubtedly be revised upward by the Executive Council in the next year or two. On top of the $4.7 million already spent, this will represent a probable total of over $10 million in just six years. Litigation takes time --- a long, long time; but the Presiding Bishop's term runs until 2015. There is thus still plenty of time for this prediction to be fulfilled.

Even if she does [serve out her term], then the person elected to replace her will have different marching orders, because by then the entire Anglican Communion will look very different from what it is now. As Dr. Lilico foresees, the Church of England will follow the Queen. (It probably does not want to wait for Prince Charles to assume the throne, because he has long intimated that he would regard himself in that post as the "Defender of Faith", not the "Defender of the Faith.") So, presumably, will the Archbishop of Canterbury. And if the Queen decides for the traditional Anglo-Catholic wing, then the liberals in the Church of England will have to call themselves something else, to say nothing of the evangelicals if they are then separate.

Comment: This is still true, as far as I can see. The Queen's Mum lived to the ripe old age of 101, and Elizabeth II shows no sign of withdrawing any time soon.

Having an Anglo-Catholic Church of England would facilitate rapprochement with the GAFCON group, and in a short time after the dust settles, we could have a new Anglican Communion, surprisingly along the lines currently envisioned by Archbishop Rowan in his plans for a Covenant.

Comment: And last Monday, the Archbishop reaffirmed the two-tiered structure he envisions occurring as a result of some churches in the Communion adopting the Covenant and of others rejecting it.

There would be the core national Churches who signed onto the Covenant, presumably including the new North American province, which would be part of the compromise reached with GAFCON. (Once there are two or three different Anglican churches in England, all objections to two separate Anglican churches in the territorial United States will become meaningless.)

Comment: There will not be any final action by ECUSA on the Covenant until at least 2012, so this part of the prediction (that the Church of England could splinter before the Communion does) may well come true. However, another big factor in the picture will be what kinds of revisions are proposed to section 4 of the Ridley Draft at the Joint Standing Committee meeting this next December.

Then there would be the non-covenantal, or "affiliate" churches like TEC and ACoC, still nominally "in communion" with the Archbishop of Canterbury, but preaching an entirely different, "inclusive" Gospel, as described so well by Fr. Kimel.

Comment: (Remember how to find the link to the post I was referencing --- scroll to the bottom of the page. However, the posts that precede and lead up to it are all worth your while, as well.) In the time between now and 2012, the separatist tendencies of these two churches will only increase. They will never give up their views of "justice" (about which, see this post) as the price of remaining (what they see as unjust) Anglicans.

Finally, there would be those on the fringe, not in communion, but preserving the Anglican faith in various forms, just as we have with the Continuing Churches today. (The new North American province may also splinter in time, between its own Anglo-Catholics' views on the ordination of women, and its evangelicals who are not opposed to women priests. If that happens, the United States will end up mirroring what happens in England.)

Comment: It would be sad if this turns out to be true. But as Fr. Kimel observes (in post XIII at this link), "church division is intrinsic to Protestant Christianity."

Against all these interacting currents, the two weeks of Lambeth 2008 will seem like the calm where interfering waves temporarily cancel each other out. The turbulence will emerge beyond, just as though there had been no interference. Anything of significance that is accomplished at Lambeth will be whatever is done to advance the draft of the Covenant. For if all turns out the way envisioned in the articles above and in my own added comments, it will be around such a document that the core of the New Anglican Communion coalesces---and quickly. (Already the
voices in TEC are saying that they will not be able to take up the subject of a covenant at GC 2009 because of the timing, and that its consideration will have to wait for GC 2012. That is exactly right, and by 2012 any contribution to it by TEC will hopefully have become irrelevant.)

Sic transit gloria Communionis anglicae . . .

Comment: It looks to me as though the decline of the Communion is on track to fulfillment. One final striking observation from Father Kimel comes to mind:

Pontificator’s Fourth Law: A church that does not understand itself as the Church, outside of which there is no salvation, is not the Church but a denomination or sect.

With this abandonment of an exclusive sense of being Church, must be appended Anglicanism’s rejection of the historic Episcopate as belonging to the essence (esse) of the Church. One can find, beginning with Archbishop Laud and his colleagues, various bishops and theologians arguing for its essential necessity, but such views have always remained the views of individual churchmen, not of Anglicanism. The historic Episcopate may be commended in the Chicago-Lambeth Quadrilateral; but it has never been formally asserted as essential to Church polity, and in recent decades Anglican practice has witnessed to the tacit abandonment of such views.

And of course more recently Anglicanism has embraced the ordination of women to the priesthood and episcopate, a move denounced by Catholicism and Orthodoxy.

Pontificator’s First Law: When Orthodoxy and Catholicism agree, Protestantism loses.

Monday, July 27, 2009

Ex Cathedra

One week to the day after he was expected to deliver it, the Archbishop of Canterbury has now published his reaction to the events at the General Convention of the Episcopal Church (USA) in Anaheim. Not reaction, actually, but reflections --- because Dr. Williams never reacts; he reflects.

There will be commentary enough in the Anglican blogworld about the layers of meaning discoverable in his statement. What I would like to do here is to juxtapose his remarks with the requests delivered to him by Presiding Bishop Katharine Jefferts Schori and House of Deputies President Bonnie Anderson. On July 16, with the Convention not yet concluded, they first wrote to him as follows concerning the enactment of Resolution D 025:

As you know, The General Convention voted this week to adopt Resolution D025, “Commitment and Witness to the Anglican Communion”—a multilayered resolution that addresses a range of important issues in the life of The Episcopal Church that clearly have implications for our relationships within the Anglican Communion. . . .

We understand Resolution D025 to be more descriptive than prescriptive in nature—a statement that reaffirms commitments already made by The Episcopal Church and that acknowledges certain realities of our common life. Nothing in the Resolution goes beyond what has already been provided under our Constitution and Canons for many years.
To which Dr. Williams replies:
No-one could be in any doubt about the eagerness of the Bishops and Deputies of the Episcopal Church at the General Convention to affirm their concern about the wider Anglican Communion. . . . even the wording of one of the more controversial resolutions . . . make[s] plain the fact that the Episcopal Church does not wish to cut its moorings from other parts of the Anglican family. There has been an insistence at the highest level that the two most strongly debated resolutions (DO25 and CO56) do not have the automatic effect of overturning the requested moratoria, if the wording is studied carefully. . . .

However, a realistic assessment of what Convention has resolved does not suggest that it will repair the broken bridges into the life of other Anglican provinces; very serious anxieties have already been expressed. The repeated request for moratoria on the election of partnered gay clergy as bishops and on liturgical recognition of same-sex partnerships has clearly not found universal favour, although a significant minority of bishops has just as clearly expressed its intention to remain with the consensus of the Communion. The statement that the Resolutions are essentially 'descriptive' is helpful, but unlikely to allay anxieties. . . .
Presiding Bishop Jefferts Schori and President Anderson had stressed ECUSA's commitment to welcoming LGBT persons into all walks of Church life:
In reading the resolution, you will note its key points, that:
  • Our Church is deeply and genuinely committed to our relationships in the Anglican Communion;
  • We recognize the contributions gay and lesbian Christians, members of our Church both lay and ordained, have made and continue to make to our common life and ministry;
  • Our Church can and does bear witness to the fact that many of our gay and lesbian brothers and sisters live in faithful, monogamous, lifelong and life-giving committed relationships;
  • While ordination is not a “right” guaranteed to any individual, access to our Church’s discernment and ordination process is open to all baptized members according to our Constitution and Canons . . .
And Dr. Williams responds:
. . . [A] blessing for a same-sex union cannot have the authority of the Church Catholic, or even of the Communion as a whole. And if this is the case, a person living in such a union is in the same case as a heterosexual person living in a sexual relationship outside the marriage bond; whatever the human respect and pastoral sensitivity such persons must be given, their chosen lifestyle is not one that the Church's teaching sanctions, and thus it is hard to see how they can act in the necessarily representative role that the ordained ministry, especially the episcopate, requires.

In other words, the question is not a simple one of human rights or human dignity. It is that a certain choice of lifestyle has certain consequences. So long as the Church Catholic, or even the Communion as a whole does not bless same-sex unions, a person living in such a union cannot without serious incongruity have a representative function in a Church whose public teaching is at odds with their lifestyle. . . .
On July 17, the two ladies from ECUSA wrote Dr. Williams again, with regard to the recently enacted Resolution C 056, allowing bishops a "generous pastoral response" to same-sex couples:
Like Resolution D025, about which we wrote to you several days ago [Ed. note: actually it was just the day before, but we know how time flies when one is busy saving the world at General Convention], Resolution C056 will impact both the life and work of The Episcopal Church and have implications for our relationships within the Anglican Communion. . . .

While the Resolution honors the diversity of theological perspectives within The Episcopal Church, it does not authorize public liturgical rites for the blessing of samegender unions. . . .

Resolution C056:

• Calls on the Standing Commission on Liturgy and Music . . . to collect and develop theological and liturgical resources around the blessing of same gender unions . . . .

• Allows bishops, particularly those in dioceses within civil jurisdictions where samegender marriage, civil unions, or domestic partnerships are legal, to provide a generous pastoral response to meet the needs of members of this Church.

It is now left to each bishop to determine what such a generous pastoral response might mean in her or his diocesan context. . . . The Resolution honors and acknowledges this Church's continuing commitment to and honoring of theological diversity and the inclusion of a variety of points of view on matters of human sexuality.
And Dr. Williams has this to say in reply:

. . . [T]he issue is not simply about civil liberties or human dignity or even about pastoral sensitivity to the freedom of individual Christians to form their consciences on this matter. It is about whether the Church is free to recognise same-sex unions by means of public blessings that are seen as being, at the very least, analogous to Christian marriage.

In the light of the way in which the Church has consistently read the Bible for the last two thousand years, it is clear that a positive answer to this question would have to be based on the most painstaking biblical exegesis and on a wide acceptance of the results within the Communion, with due account taken of the teachings of ecumenical partners also. A major change naturally needs a strong level of consensus and solid theological grounding.

This is not our situation in the Communion. . . .
The way I read the requests and the responses to them, the score is ABC 2, ECUSA 0 at this point. Dr. Williams has firmly, but politely and gently, told Presiding Bishop Jefferts Schori and Dr. Anderson "This will not fly in the greater Communion. You are on your own . . .". Only he says it to them much more indirectly:
The second issue is the broader one of how a local church makes up its mind on a sensitive and controversial matter. It is of the greatest importance to remember this aspect of the matter, so as not to be completely trapped in the particularly bitter and unpleasant atmosphere of the debate over sexuality, in which unexamined prejudice is still so much in evidence and accusations of bad faith and bigotry are so readily thrown around.

When a local church seeks to respond to a new question, to the challenge of possible change in its practice or discipline in the light of new facts, new pressures, or new contexts, as local churches have repeatedly sought to do, it needs some way of including in its discernment the judgement of the wider Church. Without this, it risks becoming unrecognisable to other local churches, pressing ahead with changes that render it strange to Christian sisters and brothers across the globe.

This is not some piece of modern bureaucratic absolutism, but the conviction of the Church from its very early days. The doctrine that 'what affects the communion of all should be decided by all' is a venerable principle. . . . It takes time and a willingness to believe that what we determine together is more likely, in a New Testament framework, to be in tune with the Holy Spirit than what any one community decides locally.

[We should not] ignore or minimise the . . . danger of so responding to local pressure or change that a local church simply becomes isolated and imprisoned in its own cultural environment.

. . .

In recent years, local pastoral needs have been cited as the grounds for changes in the sacramental practice of particular local churches within the Communion, and theological rationales have been locally developed to defend and promote such changes. . . . But it should be clear that an acceptance of these sorts of innovation in sacramental practice would represent a manifest change in both the teaching and the discipline of the Anglican tradition . . .

To accept without challenge the priority of local and pastoral factors in the case either of sexuality or of sacramental practice would be to abandon the possibility of a global consensus among the Anglican churches such as would continue to make sense of the shape and content of most of our ecumenical activity. It would be to re-conceive the Anglican Communion as essentially a loose federation of local bodies with a cultural history in common, rather than a theologically coherent 'community of Christian communities'.
Here is the subtext: "In other words, +Katharine and Bonnie, your way leads to a federation of autonomous churches. I want no part of that. What I lead is a community of churches in the Anglican tradition, and I am not about to let you hijack it. See those words 'the possibility of a global consensus among the Anglican churches'? A global consensus, 'such as would continue to make sense of the shape and content of most of our ecumenical activity'? That is what is driving me. It is spelled 'C - o - v - e - n - a - n - t.'"

Dr. Williams uses the word "ecumenical" no less than eight times in his response. That is no accident. Remember that he had a "friendly meeting" with the Pope in May 2008, and that he arranged for a deliberately strong ecumenical delegation at Lambeth later that summer, including the Vatican's Cardinal Dias, whom he invited to speak to the assembled bishops. He has his eye on the main ecumenical prize --- a greater unity between Canterbury and Rome (not a complete reversal of the Reformation, but a full recognition of Anglican orders would be a good start). The path of ECUSA leads emphatically away from this prize. (The Church of England itself threatens to derail it as well, if it approves women as bishops; but remember that Dr. Williams weighed against the measure in Synod, reminding everyone about the "heavy and serious ecumenical cost" of going forward.)

He not only says that the path of ECUSA is contra-ecumenical; he suggests that bishops of ECUSA will no longer be appropriate representatives for the Communion in ongoing ecumenical talks (Bishop Epting, please call your office):
There is also an unavoidable difficulty over whether someone belonging to a local church in which practice has been changed in respect of same-sex unions is able to represent the Communion's voice and perspective in, for example, international ecumenical encounters.
This seems to me to be the chief point of the Archbishop's message: ECUSA can abandon any hope of ecumenical relations if that is its choice, but we in the Anglican Communion will do everything in our power to keep that door open, and stay in dialogue with the Roman Catholic Church. And to facilitate the Communion's process in that regard, Dr. Williams has his hopes pinned on an Anglican Covenant. His piece, after all, is entitled: "Communion, Covenant, and our Anglican Future" (emphasis added):
As Anglicans, our membership of the Communion is an important part of our identity. However, some [sc. ECUSA] see this as best expressed in a more federalist and pluralist way. They would see this as the only appropriate language for a modern or indeed postmodern global fellowship of believers in which levels of diversity are bound to be high and the risks of centralisation and authoritarianism are the most worrying. There is nothing foolish or incoherent about this approach. But it is not the approach that has generally shaped the self-understanding of our Communion – less than ever in the last half-century, with new organs and instruments for the Communion's communication and governance and new enterprises in ecumenical co-operation.
There is that word "ecumenical" again --- "new enterprises in ecumenical co-operation." No, they shall not be derailed by whatever ECUSA chooses to do on its own. For the Covenant process represents a mutual desire for accountability in Communion --- the exact opposite of what General Convention expressed in its "me, me" Resolutions D025 and C 056:
The Covenant proposals of recent years have been a serious attempt to do justice to that aspect of Anglican history that has resisted mere federation. They seek structures that will express the need for mutual recognisability, mutual consultation and some shared processes of decision-making. They are emphatically not about centralisation but about mutual responsibility. They look to the possibility of a freely chosen commitment to sharing discernment (and also to a mutual respect for the integrity of each province, which is the point of the current appeal for a moratorium on cross-provincial pastoral interventions). They remain the only proposals we are likely to see that address some of the risks and confusions already detailed, encouraging us to act and decide in ways that are not simply local.

They have been criticised as 'exclusive' in intent. But their aim is not to shut anyone out – rather, in words used last year at the Lambeth Conference, to intensify existing relationships.
Only those who demand that their way be accepted by everyone else could feel "excluded" by the talk of an Anglican Covenant. For the Covenant will be an expression of what Anglicans have in common, and not of what is driving them apart. But there is to be, as yet, no talk of throwing anybody out --- the Covenant is not in final form yet, and so ECUSA will have one last chance to sign on if it chooses:
It is possible that some will not choose this way of intensifying relationships, though I pray that it will be persuasive. It would be a mistake to act or speak now as if those decisions had already been made – and of course approval of the final Covenant text is still awaited. For those whose vision is not shaped by the desire to intensify relationships in this particular way, or whose vision of the Communion is different, there is no threat of being cast into outer darkness – existing relationships will not be destroyed that easily.
And if ECUSA refuses to sign it? There still will be no final moment for its role in the Communion --- it will just shift slightly, to a non-covenanted level:
But it means that there is at least the possibility of a twofold ecclesial reality in view in the middle distance: that is, a 'covenanted' Anglican global body, fully sharing certain aspects of a vision of how the Church should be and behave, able to take part as a body in ecumenical and interfaith dialogue; and, related to this body, but in less formal ways with fewer formal expectations, there may be associated local churches in various kinds of mutual partnership and solidarity with one another and with 'covenanted' provinces.

This has been called a 'two-tier' model, or, more disparagingly, a first- and second-class structure. But perhaps we are faced with the possibility rather of a 'two-track' model, two ways of witnessing to the Anglican heritage, one of which had decided that local autonomy had to be the prevailing value and so had in good faith declined a covenantal structure. If those who elect this model do not take official roles in the ecumenical interchanges and processes in which the 'covenanted' body participates, this is simply because within these processes there has to be clarity about who has the authority to speak for whom.
(Note that the Archbishop speaks again of certain disqualification from "official roles in the ecumenical interchanges and processes . . .". UPDATE: Bishop Epting coincidentally just put up a post in which he confirms that ECUSA is laying off his "Associate for ecumenical relations." To that small extent, at least, ECUSA and Archbishop Williams seem to be on the same track.)

This is classic Rowan Williams --- the "peace negotiator" I described in this earlier post. Doing whatever is necessary to keep everyone at the table, even if it is a two-tiered one, and even if only those at the upper tier are qualified to represent the Communion in ecumenical interchanges, he blames no one, criticizes no one, but simply describes where their actions will take the group as a whole, and what sort of picture will result. As Giles Fraser puts it in a passage I quoted in the post just linked:

To put it at its starkest: peace is better than truth. Of course, this is not a description that advocates of this position would recognize. In typically Hegelian fashion, they reject the suggestion that peace and truth stand in opposition to one another. This is why, when the Archbishop is charged with sacrificing truth for unity, as he often is, his comeback has consistently been that unity is a means by which truth is made visible, that we come to truth through the process of uniting conversation. In other words the 'struggle to conceive of a structural wholeness nuanced enough to contain what appeared to be contradictories' applies even to the apparent antithesis of truth and peace.

Thus, in the remainder of his response, Dr. Williams begins to spell out the consequences of ECUSA's marching to its own drummer. In considering what follows (and what has preceded it), one has to bear in mind that he is just the Archbishop of Canterbury, and not the Pope. He may be a metropolitan within the Church of England, but within the wider Communion he has no powers save that of moral suasion, and the power to withhold invitations to Lambeth and to the Primates' Meeting. And finally, one has to bear in mind that British custom and etiquette demand that he leave unsaid what he really means to say. If the Presiding Bishop and the President of the House of Deputies are not able to read between the lines, he will wait until the next occasion presents itself to make things a little clearer. For the present, however, he is content to offer one last carrot, and one last stick. First, the carrot, i.e., an indirect message to ECUSA's Bishops that should they want to consider some sort of action in September that would make clear their intention not to agree to any more elections or consecrations that could threaten the wider Communion, then he certainly would be receptive to it (bold emphasis added):

It helps to be clear about these possible futures, however much we think them less than ideal, and to speak about them not in apocalyptic terms of schism and excommunication but plainly as what they are – two styles of being Anglican, whose mutual relation will certainly need working out but which would not exclude co-operation in mission and service of the kind now shared in the Communion. It should not need to be said that a competitive hostility between the two would be one of the worst possible outcomes, and needs to be clearly repudiated. The ideal is that both 'tracks' should be able to pursue what they believe God is calling them to be as Church, with greater integrity and consistency. It is right to hope for and work for the best kinds of shared networks and institutions of common interest that could be maintained as between different visions of the Anglican heritage. And if the prospect of greater structural distance is unwelcome, we must look seriously at what might yet make it less likely.
And then the stick --- not overt, mind you; just a gentle hint at what he might decide to do in order to accommodate dissenting dioceses who want to subscribe to the Covenant, even if ECUSA does not:
It is my strong hope that all the provinces will respond favourably to the invitation to Covenant. But in the current context, the question is becoming more sharply defined of whether, if a province declines such an invitation, any elements within it will be free (granted the explicit provision that the Covenant does not purport to alter the Constitution or internal polity of any province) to adopt the Covenant as a sign of their wish to act in a certain level of mutuality with other parts of the Communion. It is important that there should be a clear answer to this question.
Might this last bit even be an indirect signal to ACNA? A means, in short, for it to cross the threshold of the Communion without having to go through the bureaucratic obstacles of the ACC? (Remember, the goal is to keep everyone at the table.) It certainly will be interesting at General Synod next February when the motion to recognize ACNA comes to the floor. (Hint to ECUSA's Bishops: read carrot again, then read stick, and then carrot once more.)

The ball thus is returned to ECUSA's court --- but with a precatory spin added to its trajectory:

All of this is to do with becoming the Church God wants us to be, for the better proclamation of the liberating gospel of Jesus Christ. It would be a great mistake to see the present situation as no more than an unhappy set of tensions within a global family struggling to find a coherence that not all its members actually want. Rather, it is an opportunity for clarity, renewal and deeper relation with one another – and so also with Our Lord and his Father, in the power of the Spirit. To recognise different futures for different groups must involve mutual respect for deeply held theological convictions. Thus far in Anglican history we have (remarkably) contained diverse convictions more or less within a unified structure. If the present structures that have safeguarded our unity turn out to need serious rethinking in the near future, this is not the end of the Anglican way and it may bring its own opportunities. Of course it is problematic; and no-one would say that new kinds of structural differentiation are desirable in their own right. But the different needs and priorities identified by different parts of our family, and in the long run the different emphases in what we want to say theologically about the Church itself, are bound to have consequences. We must hope that, in spite of the difficulties, this may yet be the beginning of a new era of mission and spiritual growth for all who value the Anglican name and heritage.

Amen, Dr. Williams. We in the traditional wing of the Episcopal Church must hope, indeed.

[UPDATE 07/29/2009: In a move that some have suggested might even have been "choreographed", the Vatican's Pontifical Council for Promoting Christian Unity has come out with a statement in support of the Archbishop's ecumenical reflections. Others, like the Very Rev. Nicholas Knisely, blogging at Entangled States, have picked up on ++Rowan's aspirations to keep the Anglican Communion in meaningful conversation with Rome.]

Saturday, July 25, 2009

The Fresno Court Decision Examined

The ruling by the Fresno Superior Court in the San Joaquin case has now been put online (by another remnant Diocese, naturally), so it is possible to do a more detailed examination of its reasoning, which lay people can follow. (One of the disadvantages of Blogger as a host site is that it does not yet allow the uploading of Adobe Acrobat documents.) Moreover, there is (as I predicted) so much trumpeting of the case by the Episcoleft as a "final, definitive and authoritative adjudication" of the issues that I feel compelled to put the matter into a better legal perspective --- again, for the lay person who wonders what all the fuss is about.

First of all, as to the "finality" of the decision: it is anything but "final". It is a ruling on a "motion for summary adjudication" --- that is, a motion claiming that there are no disputed issues of fact needing a trial --- on one cause of action in a second amended complaint, which is no longer operative, because that version has been superseded by what is now the fourth amended complaint, and which has seven causes of action.

Thus in the first place, the ruling has to do with a pleading that no longer even counts in the case. As I explained in my earlier post on the subject, that makes the decision irrelevant --- even though the court itself at the moment does not agree. But it is just the court assigned to the case for law and motion purposes, and is not necessarily the court that will actually try the case. (The master calendar judge of the Fresno Superior Court will assign a trial judge only when the case comes up for trial, and his assignment will depend on which judge has a calendar clear enough at that time to handle a two-to-three-week trial.)

As an interim ruling, and not a final decision, it is subject to modification, or even reversal, at any time up to the entry of final judgment. Moreover, the decision is not binding at all on the defendant law firm of Wild, Carter and Tipton, because they were added as defendants by the third amended complaint, and this ruling deals with the second amended complaint. So the defendant law firm will, notwithstanding the ruling, be able to offer evidence at the trial to the effect that ECUSA is not hierarchical with respect to its Dioceses.

So with that out of the way, let's proceed to the ruling itself, and see how it has been put together, and how well it stands up to an examination of its reasoning.

It must first be acknowledged that this is a court that knows the rules it must follow on summary adjudication / summary judgment (op. at page 2):
In ruling on a motion for summary judgment or summary adjudication, the court must "consider all of the evidence' and all of the 'inferences' reasonably drawn there from and must view such evidence and such inferences 'in the light most favorable to the opposing party." (Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 843.) In making this determination, courts usually follow a three-prong analysis: identifying the issues as framed by the pleadings . . .
Now let us look at how the court follows the first step it acknowledges, namely, to "identify the issues as framed by the [now irrelevant and superseded] pleadings . . .": First it states the question involved:
Defendants argue that the issue of whether the relationship between an Episcopal diocese and the Episcopal General Convention is one of first impression [i.e., meaning that no cases have previously decided this issue]. It is true that cases regarding the Episcopal Church have involved the relationship between parishes and their dioceses. However, it is beyond dispute that the Episcopal Church is a hierarchical church.
Well, now, that's a nice way to go about your task, isn't it? State what your view of the ultimate issue is before you get around to looking at any of the evidence. Acknowledge that it is a question that has never been decided before, and then decide it --- just like that! Now, of course, follow that up with your authority for making such a statement --- and be sure to cite as authority those very cases you just acknowledged did not decide this particular question:
Both the California Supreme Court in In Re: Episcopal Church Cases and the appellate court in New v. Kroeger found it to be so. (In Re: Episcopal Church Cases, supra, 45 Cal.4th at p. 494; New v. Kroeger, supra, 167 Cal.App.4th 816-817.)
Oh, really? One might have thought, from what was said earlier, that those cases involved the relationship of individual parishes to a diocese, and not that of a diocese to the Church as a whole, and so were not authority on this issue. Well, if one had thought that, one would simply be wrong, evidently:
The fact that the Supreme Court and the Fourth District were ultimately analyzing the actions of a parish, rather than the actions of a diocese, do [sic] not invalidate the findings regarding the nature of the Church as a whole.
Now that certainly follows from the premise, doesn't it? Let me restate the argument just made in classical Aristotelian form:

A. (Major premise) Whether the Episcopal Church (USA) is hierarchical in respect to an individual diocese has never been decided by the courts before.

B. (Minor premise) Two California courts, however, decided that the relationship of a diocese to a parish was hierarchical.

C. (Conclusion) Therefore, it is "beyond question" that the Church must be hierarchical as to one of its dioceses.

Yes, that clears it up --- all nice and logical, isn't it? Let's look at how the court now justifies its conclusion, by citing to the plaintiffs' evidence on the point:
Moreover, and more importantly, a review of the Constitution and Canons of the Church indicates that it is indeed hierarchical.

The Episcopal Church's Constitution provides for the establishment of a General Convention composed of two houses, the House of Bishops and the House of Deputies, each with the right to originate and propose legislation. (Mullin Decl. Exhibit 1, Constitution of Episcopal Church Article I, Sec. 1.) Among the duties of the General Convention is the enactment and amendment of the Canons. (See Mullin Decl. Exhibit 1, Canons of Episcopal Church Title I, Canon I, sec. (2) (n) (3), Title V, Canon I, Sec. 1.) The General Convention approves and consents to the admission of new dioceses and the election of new bishops. (Mullin Decl. Exhibit I, Constitution of Episcopal Church Article II, Sec. 2, Article V, Sec. 1.) Currently, new dioceses must express "unqualified accession to the Constitution and Canons" before they can be in union with the general convention and admitted to the Episcopal Church. (Mullin Decl. Exhibit 1, Constitution of Episcopal Church Article V, Sec. 1.)
Why, it is now just so absolutely clear, isn't it? There are two houses in the Church's legislature, and the legislature adopts rules (canons) and admits new dioceses! And those new dioceses (but not the Diocese of San Joaquin, which was admitted well before the Constitution was amended in 1982) have to express an "unqualified" accession to the Constitution and Canons, too. (Ignore the fact for the moment that the Diocese of San Joaquin did not accede to the Canons, but only to the Constitution. We'll get to that later.) So the Church must be hierarchical --- because (today, but not earlier) you have to say that you join it without any reservations!

Well, that's what the plaintiffs' evidence says. So what about the defendants' evidence? (Remember the very first rule acknowledged by the Court in dealing with summary judgment motions [see first quote above]: the court must "consider all of the evidence".) And how does the court proceed to follow that rule? Why, simply by excluding the defendants' evidence, that's how:
Defendant's attempt to dispute the hierarchical nature of the Episcopal Church with the declaration of Rev. Wantland is unavailing. His declaration as to the nature of the Church is an inadmissible opinion and a legal conclusion. "[It] is thoroughly established that experts may not give opinions on matters which are essentially within the province of the court to decide." (Carter v. City of Los Angeles (1945) 67 Ca1.App.2d 524, 528.)
Again, one might have thought the court had just admitted Dr. Mullin's expert evidence on the very same issue. One would have been mistaken. Apparently citing to Dr. Mullin's declaration is not the same thing as considering it. Or maybe it is that when a court first proceeds to decide the issue before looking at any of the evidence, then it needs to look at and cite just that evidence which supports the conclusion it reached beforehand. Yes, that must be it; that must be how a court proceeds to make a decision in accordance with the rules stated at the outset above.
Nor is the hierarchical nature of the church something to be determined on a "case by case basis" or based on a showing of the powers and authority ceded to the general Church by the various constituent Dioceses, as defendants have argued. The hierarchical nature of the Church is apparent from its governing documents as a matter of law.
Not supposed to look at "the powers and authority ceded to the general Church by the various constituent Dioceses", are we? But the court said this just three paragraphs earlier:
A hierarchical church is one in which individual churches are organized as a body with other churches having similar faith and doctrine, and with a common ruling convocation or ecclesiastical head vested with ultimate ecclesiastical authority over the individual congregations and members of the entire organized church. (New v. Kroeger (2009) 167 Cal.App.4th 800, 815 (New).) In a hierarchical church, an individual local congregation that affiliates with the national church body becomes a member of a much larger and more important religious organization, under its government and control, and bound by its orders and judgments.
So how is one supposed to determine the nature of the relationship between the Dioceses and the Church if one does not look at "the powers and authority [they] ceded to the general Church"? Oh, remember: one does not look at the "powers and authority they gave up"; one looks at the powers of the national Church as expressed in the Church's governing documents. Yes, it all becomes quite clear now, if we again put the syllogism into Aristotelian form:

A. (Major premise) To be termed "hierarchical", a Church must be governed by a religious organization which is "much larger and more important" than any individual local congregation.

B. (Minor premise) To determine if that is the case, one looks just at what the Church's governing documents say, and not at what powers the individual members gave up in creating the national organization, or at the powers they retained (such as the right to amend their own Constitution).

C. (Conclusion) Therefore, if the governing documents say there is a religious organization which is "much larger and more important" than any individual Diocese on its own (which must, for these purposes, be considered as identical to a "local congregation"), we don't have to look at the powers retained by the individual Dioceses.

Or, stated in other terms, the fact that the governing documents spell out that General Convention is "much larger and more important" than any one Diocese is sufficient on its own to determine the issue.

Once again, it all becomes perfectly clear when the logic of the argument is laid out for anyone to see. And what is that bit about "bound by its orders and judgments"? One must have missed the language in ECUSA's Constitution where it says: "This Constitution, and the Canons and other Enactments of General Convention which shall be made in pursuance thereof, shall be the supreme Law of the Church; and the several Dioceses in each State shall be bound thereby, any Thing in their Constitutions or Canons to the Contrary notwithstanding." So that explains why, when General Convention enacted Canon III.9.6 (a), requiring equal licensing of priests for women as well as men, and then later amended it to require the same for all persons without regard to their sexual orientation, all the Church's Dioceses immediately began to employ women and gay priests. And that is why Bishop Lamb himself is free to offer communion to the unbaptized, notwithstanding the language of Canon I.17.7 stating that Holy Communion is only for those who have been baptized.

Yes, it all becomes perfectly clear, now --- the Episcopal Church (USA) must be hierarchical, because its Constitution says so. We cannot be troubled to look at any evidence (other than the plaintiffs', of course, which happens to agree with us) --- that might confuse things, and one must have clarity, not confusion. Ah, but we are not done with the legal argument just yet. We still have to deal with that pesky fact that the Diocese of San Joaquin never agreed to abide by or accede to ECUSA's Canons:
Although defendants make much over the fact that the Diocese acceded only to the Constitution, and not the Canons of the Episcopal Church, the court finds that the only reasonable interpretation of the documents before it is that the Diocese implicitly acceded to both the Constitution and Canons by virtue to acceding to the Constitution. The function of the Constitution is to form a legislative body, the General Convention. The General Convention adopted and amends the Canons. Acceding to the Constitution that creates the legislative body, and recognizing the authority of the legislative body, while simultaneously denying accession to the product of the legislative body is nonsensical.
Once again, this needs to be put in the form of a syllogism so the logic of it may be appreciated:

A. (Major premise) The function of a legislative body like General Convention is to make Canons.

B. (Minor premise) A Diocese which accedes to the document creating the legislative body must thereby also accede to the product of that legislative body, i.e., the Canons in this case.

C. (Conclusion) Therefore the requirement that a new Diocese accede to the Constitution and the Canons of the Church is superfluous. By acceding to the Constitution, one necessarily accedes to the Canons as well.

Apparently the court had its own undisclosed reasons for refusing to follow this principle of contractual interpretation, as expressed in Section 1641 of the California Civil Code:
§ 1641. Whole contract, effect to be given

Effect to be given to every part of contract. The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other.
Under that statute, the words "accession . . . to the Canons" have to have a meaning that is separate and apart from the meaning of the words "accession to the Constitution." But no longer. The latter now means the same as the former. Thus ECUSA no longer has to worry about the fourteen Dioceses that were like San Joaquin, and never acceded to the Canons upon joining the Church. (Maybe it doesn't have to worry about the twenty-nine Dioceses that never acceded to either, as well. That is some hierarchy.)

And what about the meaning of the word "accede"? As defined in the dictionary, it means "to agree to, to accept". And as used in the world of treaties, it means "to sign on to, or to accept." Thus many countries have acceded to the Charter of the United Nations. But it has never been implied from that act that a nation could not ever withdraw its accession. (The Charter, like the Constitution of ECUSA, is silent on the subject of member withdrawal.) Moreover, the United Nations fits the court's definition of a hierarchical organization, because its General Assembly is "much larger and more important" than any one single member country. But if that is the case, how is it that a country can withdraw from the United Nations on its own (as Indonesia did on January 7, 1965)? And why are not the resolutions of General Assembly binding on its member nations, such as Iraq under Saddam Hussein?

For the Fresno Superior Court, "accede" appears to have a peculiar and special meaning. In the court's view, accede means "agree forever", "to sign on to for all time":
Defendants contend that there was no legal impediment to their 2006 amendment qualifying the accession clause such that they acceded to the Episcopal Church's Constitution only to the extent that it was not inconsistent with the Constitution and Canons of the Diocese, as amended from time to time and further this 2006 amendment allowed for the 2008 amendment deleting the accession clause entirely and withdrawing from the Episcopal Church. Defendants are incorrect. The original accession clause itself prevents such amendment. If the Constitution of the Diocese incorporates and accedes to the Constitution and Canons of the Episcopal Church, which require accession, then the Constitution of the Diocese cannot be amended to remove such language.
One wonders where this reading of the word came from, other than from the briefs of ECUSA's attorneys. To quote the California Civil Code again:
§ 1644. Sense of words

Words to be understood in usual sense. The words of a contract are to be understood in their ordinary and popular sense, rather than according to their strict legal meaning; unless used by the parties in a technical sense, or unless a special meaning is given to them by usage, in which case the latter must be followed.
The court cannot be using the word in a technical sense, or in a special meaning given to it by usage, because both of those senses would require expert testimony to explain the special meaning, or the particular usage. And that would mean that it was an issue of fact, not decidable as a question of law. So it is puzzling to think how the court could be using the word "accede" in its "ordinary and popular sense." Under that sense, a person can freely change his mind about giving his consent, and can withdraw next week from that to which he accedes today.

The court's puzzling opinion goes on to find that it is immaterial that the Episcopal Church did not follow its own rules in electing Bishop Lamb:
Defendants contend that there was no proper notice of the March 29, 2008 special convention at which Lamb was elected. It is true that there is no competent evidence that 30 days notice of the meeting was given. Hall's declaration only establishes that he received the notice on March 2, 2008. (Decl. Hall ¶ 20; Exhibit 9.) He did not mail the notice. It is undated. Defendants also contend that the deposition of Schofield was contrary to Church policy, procedure and law. However, we may not look into the propriety of the election and deposition of church officers according to church regulations and rules.
Thus according to the Court, the Diocese of San Joaquin must follow the rules, and the Court will inquire into whether it did so in withdrawing from the Church. But the Court will not inquire into whether ECUSA itself, or the Diocese's successor did so --- that would be a forbidden inquiry into matters of church polity. So the question naturally suggests itself: Why is the withdrawal of a Diocese not a "forbidden question of church polity" every bit as much as the recognition of a new one? One will look in vain in the court's ruling for an answer to that question. Logic does not appear to be the rule in this particular domain.

In fact, one of the cases cited by the court, Vukovich v. Radulovich (1991) 235 Cal.App.3d 281, would appear to be contrary to the very ruling made by the court in the present case. In Vukovich, the Court of Appeal affirmed a trial court's decision that it could not interfere in the decision of a disaffiliated church to rejoin the mother church. It said that was a forbidden issue of church doctrine and polity. But the decision of a Diocese to leave the mother church, apparently, is not such an issue. Go figure.

The court's most striking departure from the rules of logic, however, is reserved for this observation:
Defendants claim that the corporation sole that is a party plaintiff is not the true corporation sole known as No. C0066488, the latter of which they claim to operate. Defendants are incorrect for the reasons previously expressed above. The Diocese of San Joaquin (plaintiffs) is not a new organization that "split off" from defendants' older organization. It is the older organization from which defendants' removed themselves.
Let us see if we can grasp what the court is really saying here. One can have a Diocese consisting of forty-seven parishes and 82 ordained clergy, governed by its own Constitution. Of that total, forty parishes and 61 clergy vote to amend the Constitution. The court appears to recognize that the Constitution was amended, for it refers to the "other Diocese" that was not joined as a party to Bishop Lamb's suit. So that "other Diocese" still has its Constitution --- the one it started with --- as it voted to amend it.

The dissenters, however --- seven parishes and 21 clergy --- had to come together in their own special assembly, sign a special "oath of conformity" to ECUSA in order to participate, and then they proceeded to vote to "undo" the changes that were made by the majority at the earlier meeting. As the court admits, the dissenters did not follow the rules of the group's Constitution in so assembling, and came together without lawful notice having been given. Under any version of Roberts Rules except the one apparently invented by ECUSA and Bishop Lamb, their meeting was, therefore, null and void. And despite that fact, the court treats the ones who broke their own laws as the continuation of the older group --- again, because ECUSA waves its magic wand and "recognizes" them as such.

One is entitled to be very confused here. At the outset of its opinion, the court claimed that it was applying "neutral principles": that it would look only at "the deeds to the property in dispute, the local church's articles of incorporation, the general church's constitution, canon, and rules . . .". Here, however, we see the court deliberately ignoring the church's Constitution and canons, and saying that because it is a church, ECUSA and whoever it recognizes as a "diocese" get to do whatever they like, whether it is in accord with the Constitution and canons, or not.

But no one contends that Bishop Schofield's Diocese is not a church as well. So why the double standard? Why does the court find that by withdrawing, Bishop Schofield's Diocese failed to follow the proper procedures, but that by staying, Bishop Lamb's Diocese did not have to follow any procedures whatsoever? What is going on here makes no sense.

It will be up to the Court of Appeal for the Fifth Appellate District --- not the one that decided In re: Episcopal Church Cases, or New v. Kroeger, but the one that decided California-Nevada Annual Conference of United Methodist Church v. St. Luke's United Methodist Church (2004) 121 Cal.App.4th 754 --- to set things right, whether now or at the end of the whole case.

And note, please, that the California Supreme Court's decision is not binding in this matter, either. As regards ECUSA, it was simply a decision that overruled the defendants' demurrer to ECUSA's complaint. Thus it was describing the law that would apply if ECUSA proves the allegations in its complaint --- such as that it is the hierarchical church it claims to be. The allegations in ECUSA's complaint in the Fresno case are necessarily different from those involving the parish of St. James in the Newport Beach case, except for the claim to be hierarchical. ECUSA will still have to prove that is the case in its Newport Beach lawsuit, and if the Court of Appeals corrects Judge Corona's decision as it should, then ECUSA will have to prove it in Fresno as well.

In the meantime, it would be helpful to public discussion if people recognized that (a) the ruling by the Fresno Superior Court is not final; hence (b) it is not authoritative; and hence (c) it cannot serve as a precedent for any other court, in California or elsewhere.

Friday, July 24, 2009

Friday TED Talk: Nina Jablonski on Skin Color

In this talk from the February 2009 TED Conference, anthropologist Nina Jablonski rehearses the simple correlation between skin color and exposure to the sun. Charles Darwin had alluded to this as a factor in the evolution of skin color, but as Prof. Jablonski explains, he lacked access to the definitive kind of data that NASA could provide, and so was reluctant to publish it as a conjecture:

You may read more about Nina Jablonski here; there is information about the book she has written on this topic here. A transcript of an interview she gave to TED is here. The high-res version of her talk is here, and you may download the talk in other versions from this page.

The TED Global2009 Conference just finished, and there were some truly marvelous talks which I plan to feature as the videos are put up on the TED site. (Right now, the only one available is the talk by Gordon Brown which I featured earlier this week.)

Thursday, July 23, 2009

Brace Yourselves in San Joaquin - Sound and Fury Follows

Word has just been received that the Fresno County Superior Court has affirmed its earlier tentative ruling granting the plaintiff ECUSA's and Bishop Jerry Lamb's motion for summary adjudication of the first cause of action in their second amended complaint. The court issued its final ruling after having held the matter under submission for 77 days. The court heard extensive oral arguments on the motion on May 5, after having postponed the hearing six times since February 25 until it issued its tentative decision in the plaintiffs' favor. (As an informal indication of how impartial the decision is, note that the court sustained [upheld] every one of the plaintiffs' objections to the evidence offered by Bishop Schofield, while it overruled all twenty-one of Bishop Schofield's objections to the plaintiffs' evidence. It also reversed its tentative ruling made at the hearing to keep out the last-minute declarations filed by Bishops Lamb and Buchanan to cover gaps they had left in their original evidence. It allowed that evidence in, and said it did not need to hear the defendants' evidence, or give them any chance to respond.)

By law, the court was required to render its decision within 90 days of May 5, or by Monday, August 3. (Unlike the case with the State's legislators and their duty to enact a budget by July 1 of each year, if a judge cannot certify that all matters submitted to him within the last 90 days have been decided, he cannot draw his paycheck.) The lengthy period between hearing and final decision appears not to have been used to modify the court's earlier ruling to any great extent. (The ruling does not affect the case against Bishop Schofield's attorneys, who were added as defendants after the plaintiffs filed their motion.)

Surprisingly, the court's decision to grant the motion is no longer the bad piece of news it would have been had it happened on February 25, or shortly thereafter. I write this post immediately after receiving word of the court's ruling, in order to forestall the impact of the trumpet-blaring from Bishop Lamb, his supporters, and the Episcoleft blogworld that will now inevitably follow.

The reason why the ruling is not bad news for the defendants any longer is quite simple: the case itself has moved on. The parties are no longer concerned with the second amended complaint, which was the subject of the court's ruling. The plaintiffs have now filed, and the Schofield defendants have now answered, their fourth amended complaint in this case. That fourth amended complaint contains whole new theories about the alleged collusion between the various defendants (including the Bishop's law firm) to remove property from the Episcopal Church (USA) and its allegedly still-existing diocese.

A motion for summary adjudication of a single cause of action, just like a motion for summary judgment on an entire complaint, is framed by the pleadings that are at issue in the case --- meaning the most current pleadings. It is, therefore, in my view a meaningless act to grant adjudication with regard to the second amended complaint, since it is no longer the operative pleading.

The filing of an amended complaint supersedes any earlier version of it --- even if, as here, the plaintiffs are careful not to change one word in the cause of action under consideration. (The amendments plaintiffs were forced to make all had to do with later causes of action they asserted against Bishop Schofield's attorneys, the law firm of Wild, Carter & Tipton in Fresno.) The fact they did not change anything in their first cause of action (for declaratory relief) is not the end of the matter, however, because the plaintiffs reiterated and incorporated the allegations of that first cause of action in all the subsequent causes of action as well. And as just noted, plaintiffs have extensively changed and added new theories to those subsequent causes of action, which are each based on the first. Likewise, Bishop Schofield has not remained pat, either. His latest answer to the fourth amended complaint contains new defenses (against all causes of action, not just the first) which were not asserted in response to the earlier complaints.

So the case has passed the motion for summary adjudication by, and for all intents and purposes, that motion was moot when the court finally acted on it. There is even at least one reported California decision (note: you may have to register with Findlaw to view the link) which expressly holds that it is reversible error for a trial court to grant summary adjudication on a first amended complaint after it has granted leave to file a second amended one. In Perry v. Atkinson (1987) 195 Cal.App.3d 14, 16-17, the court's opinion described the proceedings below as follows:

As to Perry's first amended complaint, Atkinson moved for summary judgment or alternatively summary adjudication of issues. Before the hearing on Atkinson's motions, Perry filed a second amended complaint, adding allegations of physical harm and further facts regarding her confidential relationship with Atkinson. Atkinson demurred to Perry's second amended complaint.

After hearing, the court rendered its written decision, denying Atkinson's motion for summary judgment as to Perry's cause of action for intentional infliction of emotional distress, and granting Atkinson's motion for summary adjudication as to the fraud and deceit cause of action. . . .

The court describes how the plaintiff Perry did her best to try to get the court to recognize that its ruling on the earlier complaint was moot, and how the court tried to cover its tracks by then --- without any notice or motion --- granting summary adjudication on the same cause of action in the second amended complaint, on the ground that it had not changed from how it was pled in the first amended complaint:

Perry contends the court erred in granting summary adjudication of issues as to her first amended complaint because her second amended complaint superseded the first. She asserts once the court sustained the demurrer without leave to amend, it had nothing to summarily adjudicate as to that cause of action.

Perry filed her first amended complaint on September 22, 1982, and her second amended complaint, with the court's permission, on July 24, 1985. The court heard Atkinson's summary judgment motion to Perry's first amended complaint on September 27, 1985 and took the matter under submission. The court issued its memorandum decision on October 3, granting summary adjudication as to Perry's cause of action for fraud and deceit in her first amended complaint. On October 4, the court heard Atkinson's demurrer to the fraud and deceit cause of action in her second amended complaint, but ruled that issue was moot in light of its memorandum decision granting summary adjudication.

On October 15, Perry filed a motion for reconsideration, arguing, in part, the summary adjudication was improper because the first amended complaint had been superseded by the second. On October 28, the court issued two orders: one granting summary adjudication of the fraud and deceit cause of action in Perry's first and second amended complaints and another sustaining without leave to amend Atkinson's demurrer to the fraud and deceit cause of action in Perry's second amended complaint. On November 1, the court denied Perry's reconsideration motion. . . .

The Court of Appeals then gave its view of such proceedings in no uncertain language (195 Cal.App.3d at 18):

We agree with Perry the court improperly granted summary adjudication as to the fraud and deceit cause of action in her first amended complaint. The record reflects the court granted Perry leave to file her second amended complaint with respect to her causes of action for fraud and deceit and intentional infliction of emotional distress. Once Perry did so, that complaint superseded her first amended complaint. [Citations omitted.] Thus, we treat the summary adjudication order as void . . . .

Defendants attempted to call this situation to the attention of the trial court, but it rejected defendants' argument and held the Perry case inapplicable on the ground that the San Joaquin plaintiffs, unlike Perry, had not changed any of the allegations in the cause of action on which summary adjudication was granted. Thus the defendants will now file a petition with the Court of Appeals to have the order vacated. This petition will be based on the ground that, as the Perry case just quoted decides, the motion had become moot in the interim while further versions of the operative pleadings were being filed. It will also be argued that the court's decision is wrong for all of the reasons discussed in two of my earlier posts (here and here).

With regard to the merits of the matter, the trial court in essence decided that ECUSA is hierarchical as a matter of law. But it did so by refusing to consider any of the defendants' expert evidence on the point, and ruled that evidence inadmissible. At the same time, it allowed in and did consider the evidence of the plaintiffs' expert, Dr. Mullin. We are once again in a never-never land of ECUSA's own making, in which it convinces a court to look only at what it says, and not at anything the defendants have to say. That is not the way a court is supposed to adjudicate cases. It has a duty to hear and consider the evidence of both sides before making a ruling, even on a point of law. The only way it could find ECUSA to be hierarchical as a matter of law would be if it found that the expert opinion on both sides raised no disputed issues of fact. But since it excluded all of the defendants' evidence, it cannot even claim to have made such a determination. Such an arbitrary manner of proceeding, which overwhelmingly favors the plaintiffs and gives the defendants no chance to be heard, will be the defendants' strongest reason for asking the appellate court to reverse the trial court's decision.

Most intermediate (interlocutory) petitions to the Courts of Appeal are denied, and this one could be as well, if the Court of Appeal in this instance decides that the case can still go to trial without the issue being prejudiced for an appeal at the end of the whole case. But if the Court of Appeal grants the petition and issues the writ vacating the order, the scheduled trial date --- currently February 1, 2010 --- will have to be moved still further out because of the time taken for the writ proceedings on appeal. (The parties cannot effectively engage expert witnesses and prepare for trial until they know for certain just which causes of action will be tried.)

Thus this "victory" for the plaintiffs on their motion is, in my view, a hollow one. Just ignore all the trumpet-blaring and cheering (or jeering) from the Episcoleft. It is all "sound and fury, signifying nothing . . .". Their victory will in all likelihood not stand for long, and will serve only to drag the case out still further. And since the plaintiff faux diocese of San Joaquin is far from being self-sustaining, and will need yet more cash infusions from the mother church (itself struggling to make up for lost revenues) to keep going, any such extension will not long be cause for rejoicing on that side, once the reality of what has actually happened sinks in.